BT Securities Ltd v Moss [2011] NSWSC 762

BT Securities Ltd v Moss [2011] NSWSC 762

Although the absence of a filed motion for security for costs did not itself justify relieving the Cross-Claimants from production, categories 8 and 12 were not appropriate. The Cross-Claimants had already admitted that they held bank accounts in Australia and New Zealand and had provided information about Australian and New Zealand tax returns. The further production sought was not shown to have a legitimate additional purpose, partly sought information about the Cross-Claimants' financial position, and covered narrow periods unlikely to illuminate ordinary residence. The disputed categories therefore amounted to a fishing expedition and/or sought production for an improper purpose.

Jurisdiction
Australia
Judgment Date
28 July 2011
Procedural Posture
Interlocutory Application Concerning a Notice to Produce / Motion by the Defendants/cross Claimants to Be Relieved From Producing Documents Sought by the Cross Defendants
Outcome
The Cross-Claimants' application was granted in relation to categories 8 and 12 of the Notice to Produce.
Legal Topics
['notices to Produce' 'security for Costs' 'ordinary Residence Outside the Jurisdiction' 'fishing Expedition' 'improper Purpose']
['civil Procedure' 'evidence'] ['notices to Produce' 'security for Costs' 'ordinary Residence Outside the Jurisdiction' 'fishing Expedition' 'improper Purpose']

Case Brief

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Procedural Posture

Interlocutory Application Concerning a Notice to Produce / Motion by the Defendants/cross Claimants to Be Relieved From Producing Documents Sought by the Cross Defendants

Legal Issues

  1. 1 ['Whether the Cross-Claimants should be required to produce bank statements and income tax returns sought in categories 8 and 12 of the Notice to Produce dated 27 June 2011.' 'Whether the Notice to Produce was objectionable because no motion for security for costs had been filed.' 'Whether the disputed categories amounted to a fishing expedition or sought documents for an improper purpose.' 'Whether bank accounts and tax returns were relevant to whether the Cross-Claimants were ordinarily resident out of the jurisdiction.']

Ratio Decidendi

Although the absence of a filed motion for security for costs did not itself justify relieving the Cross-Claimants from production, categories 8 and 12 were not appropriate. The Cross-Claimants had already admitted that they held bank accounts in Australia and New Zealand and had provided information about Australian and New Zealand tax returns. The further production sought was not shown to have a legitimate additional purpose, partly sought information about the Cross-Claimants' financial position, and covered narrow periods unlikely to illuminate ordinary residence. The disputed categories therefore amounted to a fishing expedition and/or sought production for an improper purpose.

Court Disposition

The Cross-Claimants' application was granted in relation to categories 8 and 12 of the Notice to Produce.

Orders

  • ['The Cross-Claimants are not required to produce the documents sought in categories numbered 8 and 12 of the Notice to Produce dated 27 June 2011.' "The Cross-Defendants are to pay the Cross-Claimants' costs of the Motion."]